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DEPARTMENT of NATURAL RESOURCES and ENVIRONMENTAL CONTROL DIVISION of WATERSHED STEWARDSHIP Statutory Authority: 7 Delaware Code, Section 6010 (7 Del.C

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DEPARTMENT of NATURAL RESOURCES and ENVIRONMENTAL CONTROL DIVISION of WATERSHED STEWARDSHIP Statutory Authority: 7 Delaware Code, Section 6010 (7 Del.C DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF WATERSHED STEWARDSHIP Statutory Authority: 7 Delaware Code, Section 6010 (7 Del.C. §6010) 7 DE Admin. Code 7401 PROPOSED REGISTER NOTICE SAN # 2016-15 7401 Surface Water Quality Standards 1. TITLE OF THE REGULATIONS: 7401 Surface Water Quality Standards 2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES: The DNREC-Watershed Assessment and Management Branch has revised the proposed amendments to Delaware Administrative Code 7401: Surface Water Quality Standards following a thorough review. The proposed amendments to the Water Quality Standards Regulations were published in the January 1, 2017 Delaware Register of Regulations. These revisions to the proposed amendments address sections that linked to incorrect sections in the regulation and Department. The revisions also include amendments by DNREC resulting from written comments during the initial public comment period which ended February 23, 2017. 3. POSSIBLE TERMS OF THE AGENCY ACTION: N/A 4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT: 7 Del.C. §6010 5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL: Regulations Governing the Control of Water Pollution 6. NOTICE OF PUBLIC COMMENT: The hearing record on the proposed changes to 7 DE Admin. Code 7401: Surface Water Quality Standards will be re- opened May 1, 2017 for a 45-day public comment period ending June 15, 2017. Individuals may submit written comments regarding the revisions to the proposed amendments via e-mail to [email protected] or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, DE 19901 (302) 739-9042. 7. PREPARED BY: David Wolanski [email protected] (302)-739-9939 Delaware's most recent Water Quality Standards Regulations were promulgated 10/01/2014. Under the Federal Beaches Environmental Assessment and Coastal Health (BEACH) Act, states are required to update their water quality criteria to meet updated federal Environmental Protection Agency guidance for bacterial water quality. Secretary David Small approved Start Action Notice 2016-15 on 12/13/2016 to update Delaware Water Quality Standards Section 4.5.7.1. The proposed updates were published in the Delaware Register on January 1, 2017. A public hearing on the proposed updates was held February 23, 2017 in the DNREC Auditorium. Comments submitted by Evelyn MacKnight of US EPA Region 3 regarding the updates suggested several revisions the Department concurred with. Staff also proposed fixing two technical issues in the 10/01/2014 regulation. The proposed regulations and updated proposed regulations are shown in the sections that follow. Interested parties shall submit comments in writing on the amendments by June 15, 2017. Written statements and comments should be addressed to [email protected] or by USPS to: Lisa Vest DNREC - Hearing Officer DNREC, 89 Kings Highway, Dover, DE 19901 Original Proposed Language as shown in the January 1, 2017 Register notice: 4.5.7 Bacterial Water Quality Criteria 4.5.7.1 Primary and Secondary Contact Recreation Waters: The following criteria shall apply: The purpose of these criteria is to provide the Department with a basis to assess water quality trends and pollution control needs with regard to primary and secondary contact recreation in waters of the State and to meet Federal Beaches Environmental Assessment and Coastal Health (BEACH) Act Requirements. The criteria apply to enterococcus bacteria determined by the Department to be of non-wildlife origin based on best scientific judgment using available information. Swimming in waters affected by runoff during runoff periods may present an elevated risk of gastrointestinal illness and is not recommended. Updated Proposed Regulations: (in section 2.0) "Public Water Supply" means any waters of the State designated as public water supply in Section 10 3 (in section 3j) (j) Parts of these waters are APPROVED shellfish harvesting areas. Information on areas where shellfish may be taken should be obtained from the Shellfish & Recreational Waters Branch, Watershed Assessment Section, Division of Water Resources Watershed Stewardship, Department of Natural Resources and Environmental Control. 4.5.7 Bacterial Water Quality Criteria 4.5.7.1 Primary and Secondary Contact Recreation Waters: The following criteria shall apply: The purpose of these criteria is to provide the Department with a basis to assess water quality trends and pollution control needs with regard to primary and secondary contact recreation in waters of the State and to meet Federal Beaches Environmental Assessment and Coastal Health (BEACH) Act Requirements. The criteria apply to enterococcus bacteria determined by the Department to be of non-wildlife origin based on best scientific judgment using available information. Swimming in waters affected by runoff during runoff periods may present an elevated risk of gastrointestinal illness and is not recommended. 7401 Surface Water Quality Standards 1.0 Intent 1.1 It is the policy of the Department to maintain within its jurisdiction surface waters of the State of satisfactory quality consistent with public health and public recreation purposes, the propagation and protection of fish and aquatic life, and other beneficial uses of the water. 1.2 Where conflicts develop between stated surface water uses, stream criteria, or discharge criteria, designated uses for each segment shall be paramount in determining the required stream criteria, which, in turn, shall be the basis of specific discharge limits or other necessary controls. 1.3 Where existing facilities operating under a permit from this Department are required to reduce pollution concentrations or loadings due to the implementation of these surface water quality standards, a reasonable schedule for compliance may be granted in accordance with standards or requirements established in applicable statutes and regulations. 1.4 The Department intends to develop an agency-wide program to assess, manage, and communicate human health cancer risks from the major categories of environmental pollution under its jurisdiction. As a result of this activity, it may be necessary to adjust the upper bound worst case risk management level stated in subsection 4.6.3.3.2.1. 14 DE Reg. 1392 (06/01/11) 2.0 Definitions The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise: “Acute” means involving a stimulus severe enough to rapidly induce an adverse response; in toxicity tests, an adverse response observed in 96 hours or less is typically considered acute. An acute effect is not always measured in terms of lethality; it can measure a variety of short term adverse effects. “Additive Effect” means the total effect of a mixture of pollutants which is equal to the arithmetic sum of the effects of the individual pollutants in the mixture. “Agriculture” means the use of land and water in the production of food, fiber and timber products. “Antagonistic Effect” means the total effect of a mixture of pollutants which is less than the arithmetic sum of the effects of the individual pollutants in the mixture. “Average” means, unless otherwise noted, the arithmetic mean of a representative group of samples for a specified parameter. Representativeness shall be determined through application of appropriate statistical techniques to data collected at times of critical ambient conditions, as determined on a parameter-by- parameter basis. “Best Management Practice (BMP)” are methods, measures or practices that are determined by the Department to be reasonable and cost-effective means for a person to meet certain, generally nonpoint source, pollution control needs. BMPs include but are not limited to structural and nonstructural controls and operation and maintenance procedures. BMPs can be applied before, during or after pollution-producing activities to reduce or eliminate the introduction of pollutants into receiving waters. “Best Scientific Judgment” means findings, conclusions, or recommended actions which result from the application of logical reasoning and appropriate scientific principles and practices to available and relevant information on a particular situation. “Bioavailability” means a measure of the physicochemical access of a pollutant to an organism. “Biodegradation” means the biological decomposition of natural or synthetic organic materials by microorganisms. “Carcinogen” means a substance that increases the risk of benign or malignant neoplasms (tumors) in humans or other animals. Carcinogens regulated through these Standards include but may not be limited to those toxic substances classified as Group A or Group B carcinogens as defined in 51 FR 185 (9/24/86). “Chronic” means involving a stimulus that produces an adverse response that lingers or continues for a relatively long period of time, often one-tenth of the life span or more. Chronic should be considered a relative term depending on the life span of the organism. A chronic effect can be lethality, growth or reproductive impairment, or other longer term adverse effect. “Clean Water Act” means 33 U.S.C. 1251 et. seq., as amended. “Cold Water Fish Use” means protection of fish species (such as from the family Salmonidae) and other flora and fauna indigenous to a cold water habitat. “Complete Mix” means the concentration of a discharged pollutant varies by no more than 5% over the cross- sectional area of the receiving water at the point of discharge. “Conservation
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